Julian Huppert
Main Page: Julian Huppert (Liberal Democrat - Cambridge)Department Debates - View all Julian Huppert's debates with the Cabinet Office
Justice and Security Bill [Lords]
Julian Huppert Excerpts(11 years, 9 months ago)
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Sadiq Khan
If the hon. Lady reads the Supreme Court judgment in al-Rawi, she will see that one of the court’s concerns was about not having in its toolkit the ability to have a CMP in an appropriate case. Its point was that it is for Parliament to add the option of a CMP to the armoury in the toolkit to be used after all the other options have been exhausted. Our amendments seek to do that. CMPs will not be the first choice made by a judge, but as a last resort judges might decide to use one if all the other tools in their toolkit are inadequate.
Further amendments were also made that permitted all parties to seek the use of a CMP and not just the Government, and to ensure that the judicial balancing of public interest and national security also took place once proceedings were being held in secret. There was a degree of contentment on Second Reading in the Commons that because of the improvements made by the Lords, the worst excesses of the proposals had been ameliorated. The former leader of the Liberal Democrats, who is also a member of the Intelligence and Security Committee, the right hon. and learned Member for North East Fife (Sir Menzies Campbell), said that
“the amendments made in the House of Lords have been regarded by many people as being entirely favourable and reasonable.”—[Official Report, 18 December 2012; Vol. 555, c. 713.]
We agree. He not only wanted the Government to accept the amendments but wanted to persuade them to accept further amendments with the purpose of extending the discretion of the court, and we also agree with that.
The pity is that the Government shredded the Lords amendments as the Bill progressed through Committee. I must also, at this point, put on record how disappointing it was that the Government tabled its amendments at such late stages on repeated occasions—they did so at the latest stages possible, both in Committee and now on Report. It is unacceptable that the Bill had its Second Reading in the House of Lords on 19 June and yet the Government were still tabling amendments as late as last Thursday, thereby depriving us, interested parties and experts a chance properly to analyse those late amendments. That is not befitting of such a sensitive and complex issue.
Let me turn my attention briefly to the Liberal Democrats. If we are to be successful in our attempts to improve the Bill today, we will need their support. During the passage of this Bill, the Liberal Democrats have had a number of different positions, often at the same time. The grass-roots party voted to ditch part 2 in its entirety, but a Liberal Democrat Minister, the noble Lord Wallace of Tankerness, steered it through its Lords stages and resisted any changes or improvements. Liberal Democrat Back-Bench peers, to their credit, supported the amendments made to the Bill. More than 80% of the Liberal Democrat peers in the House of Lords voted with us to amend the Bill to incorporate the concerns of the Joint Committee on Human Rights and the independent reviewer of terrorism legislation. In Committee, the hon. Members for Cambridge (Dr Huppert) and for Edinburgh West (Mike Crockart) sided with Labour in our amendments to restore the improvements made to the Bill by the House of Lords.
Dr Julian Huppert (Cambridge) (LD)
I thank the right hon. Gentleman for his comments and he is right that a number of Labour Members voted with us on a series of our amendments. I was grateful for that support and I hope that it can continue in other areas. Is he also concerned about the number of Labour peers who went home rather than vote, as many Liberal Democrat peers did, on issues such as Wiley balancing in the second stage and the principle of closed material procedures?
Sadiq Khan
That is a curious intervention. I am trying to be nice to the hon. Gentleman because I want his vote, so I will not respond in the way his intervention deserves. Instead, I will remind him and the House of what he said in Committee. In response to what was then Government amendment 55, which undid some of the House of Lords improvements, he said:
“I accept that the Minister’s case will be bolstered significantly if the Joint Committee on Human Rights agrees with what he is saying, but”—
this was his advice to the Minister—
“he should reflect carefully on what he will do if that Committee, having looked at the amendments he is proposing and the state of the Bill when that Committee publishes a report, disagrees with him.”
He went on to say:
“I will, further, support any other amendments that take us in the direction of improved safeguards and towards the direction of the Joint Committee on Human Rights”.––[Official Report, Justice and Security Public Bill Committee, 5 February 2013; c. 195.]
I hope the hon. Gentleman and his colleagues will support us and have the courage to vote for our amendments, which reflect the positions taken by Liberal Democrat MPs in Committee and Liberal Democrat peers in the House of Lords. Any other position would be a tragic betrayal of their liberal instincts.
Sadiq Khan
The Wiley balancing exercise has been applied for many years, and there is a rich history of precedent. The Minister plucks from the air “fair and effective”, but that was plucked from the air at the eleventh hour, at the last minute that an amendment could be tabled in Committee. What we, the Joint Committee, the special advocates and the House of Lords are saying is that if there is to be a gateway test before the decision about whether a hearing should be open or under a CMP, or about which material within a CMP should be open or closed, the judge should carry out a balancing exercise. He should weigh the public interest in having an open and fair hearing against the harm done by the revealing of information that would breach national security. That is the test that judges use now and what the Supreme Court judges in al-Rawi would like to have used had they had the option of a CMP, which this Bill would give them.
Dr Huppert
The right hon. Gentleman is being generous, although it sounds as if he needs to be nicer to some of his own party’s Back Benchers to get their support on some of these issues. He is making an interesting point about the last resort, and I have some sympathy with that. He will be aware that closed material proceedings were introduced by the previous Government in respect of a number of other cases in British law—in special immigration cases, control orders and employment tribunals. Will he remind the House whether there was a last resort provision for all those? I simply cannot remember—perhaps he can.
Sadiq Khan
As the hon. Gentleman will know, this is an extension into civil actions. He is talking about special immigration appeals hearings, but I am talking about something very different: when one party is suing the Executive—the Government—for damages. Historically, the Government could press the “eject” button, but for the reasons given by the Minister and my right hon. Friend the Member for Salford and Eccles (Hazel Blears), we do not want damages to be paid where a case could be exhausted and there could be a resolution of the disputes. That context is very different from one in which somebody’s immigration status is being considered.
Mr Clarke
I thought we were doing all right with this Bill until the special advocates came out with their remarkable evidence to the Joint Committee on Human Rights. I agree that that got me into a lot of trouble. I do not understand why they take that ferocious view. As I have demonstrated before with plenty of quotations, they do win cases. One would think that they are powerless, but they do succeed. The judges accord to special advocates much more power of persuasion than they seem to accord to themselves, because judges want to have a special advocate to help them test the evidence when they are reaching their conclusion.
Of course, special advocates act on behalf of the claimants, as do most of the people who make these objections. I am not accusing them, because their motives are the highest and most honourable, but they have got into a frame of mind where they think that anything that is not advantageous to the claimant must be bad. Even at the height of my enthusiasm for human rights and the rule of law, I cannot get myself into that position. Claimants should be obliged to prove their case and I believe that special advocates are the most effective means that we have of testing the Government’s case on behalf of claimants.
Dr Huppert
The Minister made the excellent point that none of this would apply to criminal cases in which somebody’s liberty could be at risk, which is important. It is clear that there will not be closed information in such cases. Will he confirm whether civil habeas corpus cases will be covered? Could there be closed proceedings in such cases, which could affect somebody’s liberty?
Mr Straw
Let us be clear that SIAC does not deal with criminal cases. There is no procedure in our system, north or south of the border—and nor should there ever be—whereby, in any criminal trial, somebody can be tried and lose their liberty without being able to hear all the evidence.
Dr Huppert
I cannot resist the temptation. To amplify the point that was just made by the hon. Member for Bedford (Richard Fuller), does the right hon. Gentleman agree that in SIAC cases, as happened in control order cases, people’s liberty could be significantly curtailed without them knowing the evidence against them?
Mr Straw
Of course I do, and that was going to be my next point. No one is suggesting that SIAC deals with trivial matters. It deals with whether an individual should be deported on national security grounds, while the control order tribunals deal with restrictions of individuals’ liberty.
I have met one individual who was subject to a control order and will tell the hon. Member for Bedford (Richard Fuller) about the circumstances outside the Chamber. The heart of the issue is about protecting our national security. That has been discussed in abstract terms today, but what we are actually debating is how to protect the sources of information on which intelligence depends. These individuals are developed by our intelligence and security agencies and they place themselves at considerable risk. In essence, they provide information to the United Kingdom—as they would to a foreign intelligence agency—that they are not supposed to provide. Sometimes they betray their own Government or country. They are, by definition, giving away confidences and they do so for a variety of motives: some say that they are doing it for the highest of motives, which are that they fundamentally disagree with the system in which they are operating; some do it for the lowest of motives, because they have committed a criminal act and want some form of escape; and some are somewhere in between, in that they have high motives but they also want some money.
In every case, that information would simply dry up if the identity of that individual, or information leading to their identification, was compromised. That is the fundamental dilemma, and there is no way out of it unless we want to abandon our intelligence and security agencies. Let us remind ourselves—this is not scare- mongering; it happens to be true—that, had we abandoned those agencies, scores of serious atrocities would have killed our constituents and many others. If we had explained how we had ended up in such a situation by saying that information had to be provided in its entirety in open court in all circumstances, people would have said, “Thanks very much, but my relative, wife or child has just died.” That is the dilemma and it is not abstract—it is absolutely real.
Mr Deputy Speaker (Mr Nigel Evans)
Order. I ask Members to show some time restraint, because, as they can see, a lot of Members want to speak to the amendment.
Dr Huppert
It is a pleasure to follow the right hon. Member for Blackburn (Mr Straw). Although I am not sure that we agree on everything, I think we do on some things. There have been some interesting discussions between Front and Back Benchers.
I want to focus on some of the amendments. I am pleased to see the recommendations of the Joint Committee on Human Rights, which I used to have the pleasure of serving on. I pushed a number of those proposals during the Bill’s Committee stage and we had interesting debates and votes on a range of things. I do not plan to go through every single aspect, because we rehearsed them thoroughly. I am delighted to see that a number of the amendments that I tabled and supported in Committee have come back.
I hope that the Minister will clarify the position on habeas corpus. Indeed, I would be happy to take an intervention from him, because it is a very important issue. I was happy with his clear answer of no. If he can stick to that, it would be fantastic; if not, we should be clear.
I welcome some of the Government’s good amendments. One that has not really been mentioned—it was tabled in the Lords and accepted by the Government—is that which changes “must” to “may”, allowing discretion to the judge, rather than the Minister. That is very welcome and has made a significant improvement. I am pleased that the Government have stuck to it.
I am also pleased that the Government have agreed to amendments on equality of arms to achieve true symmetry. They were recommended by the JCHR and I spoke to them at great length in the Bill Committee. We lost the vote, but I am glad that the Government have now come around to them. Symmetry is important, because one can think of a number of examples where an ex-employee of MI6 may not be able to raise publicly a document that is important to a case that they may wish to bring. In such circumstances, they may wish to have a CMP themselves so that the document can be debated without putting other things at risk. Such cases may be relatively rare, but ensuring pure symmetrical equality is absolutely the right thing to do.
I am also pleased to see reinstated, at least in the text of the Bill, the role of public interest immunity. There is a debate about whether it goes far enough and about what it does, but including it in the Bill is extremely good. I share the view of those who think that PII is not a perfect process. I do not like the secrecy involved, and there is certainly not a great case for it—we have seen, for example, some of the concerns in the Litvinenko case.
There is an issue with regard to last resort. I would like to see closed proceedings as a last resort. I do not think that this is entirely about openness; it is also about fairness and the principle that both sides should have the chance to see the same evidence. I think that it would be accepted everywhere that a CMP can never quite get to that point, because one person is not able to see everything. That is not a great situation.
Simon Hughes
May I reinforce the point that has been made to the Minister without Portfolio by Members from across the House? The Joint Committee on Human Rights did not argue for an exhaustive exploration of PII, but for an assessment by the court of whether PII would be a realistic and sensible option and, if not, for the court to move on and look at other things. The Minister has said that that would be reasonable, so I do not think that there is much between him and those of us who take the position of the Joint Committee. I hope that we can reach agreement on that, even if it does not happen tonight, because the Joint Committee was clear that what we are arguing for is not an extreme position, but a moderate, modest, sensible and pragmatic one.
Dr Huppert
None of us wants to see Ministers’ time sucked up for a year reading documents and signing them. That would not be in anybody’s interests.
Why do we believe in the concept of last resort? The Government have an advantage in these cases because they know what the evidence is and the other party does not. That is why we want more balanced processes to be tried first. That changes slightly if the other party has applied for the CMP. To take the case that I advanced earlier of an ex-employee who knows of a document, we should probably say that a CMP would be the preferred option for them, rather than allowing the Government to keep something away. We want a slight bias away from the Government—not a huge bias, but a slight one—to make up for their advantage of being able to see all the documents.
Mr Kenneth Clarke
On the hon. Gentleman’s point about the last resort, I am grateful that both the Labour party spokesman and the Liberals who have spoken so far have agreed with what we have said. We do not want a statutory provision that requires people to go through immense procedures to eliminate every other way of dealing with a case. Unfortunately, there are later Opposition amendments that would have that effect. It is very late in the day. In conversational terms, we are all agreed that closed proceedings are a last resort. We want closed proceedings only when national safety is in danger and where there is no other sensible way of trying the case. I will go away and consider the matter, but we are rather late in the proceedings. Of course, the rules of the court still have to be made and it may be possible to address the matter there. In practice, there is not much between us, because judges and lawyers will not want to go into closed proceedings other than as a last resort. What we do not want is to introduce a process that involves months of time and vast sums of money, the intention of which is really to stop anybody taking on a closed procedure at all.
Dr Huppert
I thank the Minister for saying that he will look more carefully at the matter. However late in the day it is, we would be grateful for any changes he could make that might take us in the direction of what has been suggested by the JCHR and others.
While the Minister is in the mood for looking at other issues, can he be absolutely clear about confidentiality rings? This matter was raised earlier, so I will not go into it. As was discussed in Committee, there is a change in the wording that has led to the impression that the test is about the material rather than the disclosure. I hope that it will be made very clear that there is no sense in which that would apply to confidentiality rings. I believe that Opposition amendment 28 is intended to explore that issue.
I look forward to supporting any of the amendments that would take us towards the proposals of the JCHR. I look forward to amendment 1 being debated and for any opportunity to test the will of the House on that issue.
I was surprised to see amendment 70 and I look forward to the explanation from the right hon. Members for Wythenshawe and Sale East (Paul Goggins) and for Salford and Eccles (Hazel Blears). I am pleased that, owing to the influence of the Liberal Democrats, inquests were taken out of scope after being included in the original proposals. It is important, particularly at an inquest, that the family knows the grounds for the conclusion. It would be very unsatisfactory for people who had lost a loved one to be told, “We cannot tell you why it happened.” I am pleased that inquests are not included. I am surprised that there is a move to put them back in. I had hoped to ask the shadow Secretary of State whether he supported that move, but I suspect that I can guess the answer.
Amendments 39 and 40 relate to gisting. My hon. Friend the Member for Edinburgh West (Mike Crockart) and I tabled similar proposals in Committee. I find it hard to see why there would be many cases in which a judge would not want a gist to be made available. We want that to happen. I understand that there may be cases in extremis where no gist would be possible. It would be helpful if the Minister made it clear that it is the intention that judges should always gist to the maximum extent possible. As long as that is said in this place, I think that we will be able to make progress.
Mr George Howarth
The hon. Gentleman makes a good point about gisting. In an exchange with him in Committee, the Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup (James Brokenshire), gave a verbal assurance that gisting would be an acceptable way of proceeding. If that assurance was repeated today, and then taken with what the hon. Gentleman has just said, it would give a good indication of Parliament’s intention and would probably satisfy the point.
Dr Huppert
I dare say that it would. We will have to see what happens.
To return to the principle, I talked earlier to the right hon. Member for Blackburn about the range of civil proceedings into which the previous Government introduced close material proceedings. I find many of those far more objectionable than civil cases. I do not like the introduction of closed material proceedings into civil cases and find the principle very difficult. However, I find it worse when people’s liberty is at risk. That is the case with control orders, terrorism prevention and investigation measures, and SIAC.
I know something of the case referred to by the hon. Member for Bedford (Richard Fuller) because we have discussed it in the past. The gentleman referred to has had his liberty seriously infringed. It is not a simple question of whether he is allowed to stay in the country or not. He has been detained for a considerable time now, given that it is two years since we last spoke about the case in great detail, based on evidence that he does not have the chance to see. That strikes me as deeply alarming. I am sure that the whole House would hold the position that criminal sanctions should not be allowed. We are edging very close to that if we are detaining somebody for years.
Mr Straw
None of us likes the idea of closed proceedings or proceedings in which the evidence is kept from one of the parties. However, on the assumption that the court has decided that the evidence cannot be made available in open court because another individual, perhaps an informant or an agent, could be killed—I am not joking—what is the hon. Gentleman’s answer to this dilemma? Is it to leave the person at liberty or to do what used to happen in the past, which was that the Home Secretary would make such decisions without any proceedings? What is his alternative?
Dr Huppert
I think that it is the same as the right hon. Gentleman’s alternative would be in a criminal case for which the evidence needed to convict somebody could not be gathered. If one cannot gain that evidence, one cannot proceed. It is important that that applies when people are being deprived of their liberty. I made the same argument when we were getting rid of control orders. One must try to provide the evidence that is needed to convict people. Failing that, I do not like the idea that people are simply held for many years, with very little freedom. I believe that control orders had 23-hour curfews. That is an extreme infringement of liberty. I know that we are not discussing criminal issues principally, but there are many cases in the criminal system in which the police are sure that somebody is guilty, but they cannot find evidence that may be used in court. None of us would want to see such cases proceed and the same should apply to any other serious deprivation of liberty.
I look forward to the votes. It is not clear to me exactly which matters we will have the opportunity to vote on. I will stand by all the votes that I cast in Committee, where we came very close to changing the Bill, but never quite close enough. I think that we won one vote on a new clause being read a Second time, but the decision was reversed immediately afterwards by the Chairman’s casting vote. I hope that we will change the provisions either so that we do not have these proceedings, which would be my ideal, or we at least move them closer to the proposals of the JCHR. I accept that we should not keep every word of what the Joint Committee suggested and that tweaks could be made. I hope that the Minister will consider that at the point at which he confirms the position on habeas corpus and my other questions.
Mr Kenneth Clarke
I may have misheard, but the hon. Gentleman is not rejecting closed material proceedings altogether, is he? He would be the first person in the debate who has gone that far if that is what he is saying. He suggests that he might vote against clause 6. Two Members from smaller parties have tabled an amendment that would delete that clause. That would take us right back to square one after we have spent the last three hours agreeing that there are cases in which national security requires there to be closed proceedings.
Dr Huppert
I am sure that the Minister will be aware that I and my hon. Friend the Member for Edinburgh West did press for a vote in Committee to remove clause 6. Sadly, it was defeated.
I look forward to hearing the Minister’s responses on habeas corpus and the other points that I have made because what he says may well affect what happens, and liberty is a very important principle.
James Brokenshire
Our latest estimate in October was that about 20 cases would fall within the scope of these proceedings, and the regulatory impact assessment indicates up to 15 cases annually. The point is to ensure that there is annual reporting of the forthcoming CMP applications and judgments so that Parliament is regularly updated. We will get a better sense of the situation on an annual basis than if we went for quarterly reporting. That would be too short a period given the nature of litigation and the length of time that these cases are likely to take to go through the courts.
Let me deal with the Opposition new clauses tabled by the right hon. Member for Tooting (Sadiq Khan) and the hon. Member for Hammersmith (Mr Slaughter).
James Brokenshire
Before I do so, I will of course give way to my hon. Friend. We debated this issue in Committee, and I hope that he will reflect on the changes that the Government are making in the light of a number of representations that he made there.
Dr Huppert
I thank the Minister for tabling the two amendments that reflect what we discussed in Committee, where he a made commitment that he has followed through on. I have a question about new clause 6. He spoke about a five-yearly review, but that will be after only one period of five years. If that review were to say that further studies would be needed and that the system was still taking time to bed in, would there be the prospect of having further five-yearly reviews as the process continued?
James Brokenshire
A five-yearly review with, in essence, each Parliament having the opportunity to examine the operation of CMPs is appropriate. As my hon. Friend will know from our previous debates on, for example, the Terrorism Prevention and Investigation Measures Act, my view has been that that time period or cycle gives sufficient time to enable a proper consideration of the operation of the process. The right period is five years—in essence, once a Parliament so that each Parliament can consider what may or may not be appropriate at that point.
New clause 4 provides that the new CMP provisions would expire only a year after Royal Assent unless a statutory instrument extending the provisions for a further year was laid before Parliament and approved by resolution of each House. The Government believe that the new clause would largely negate the benefit of the provisions in part 2 and that it is disproportionate. The negative impact of what would amount in the first year to a sunset clause could be very serious. As I have said, we know that litigation can be lengthy, lasting a number of months and usually more than a year, while document-heavy cases can last for several years. Creating the possibility that CMPs would cease to be available halfway through the progression of a case where the judge had already decided that a CMP was in the interests of the fair and effective administration of justice in the proceedings would, in our view, undermine the judge’s discretion.
I think that the House is in basic agreement that CMPs should be available as a tool to the judge and that the judge should have discretion on whether to use one or not. In exercising that discretion, the judge will consider whether or not he agrees with the Secretary of State’s assessment of damage to national security and how the case should be fairly run. Even once a judge has decided that a CMP should form part of the procedures in the case, each piece of material will be assessed to decide whether it should go into the CMP, be withheld entirely or be redacted, summarised or disclosed. The judge can also decide at any point to revoke a CMP and, indeed, must consider doing so after the disclosure exercise if he feels it is no longer in the interests of the fair and effective administration of justice in the case. Parliament has already decided to provide four CMPs in at least 14 settings, so we do not believe that we are introducing an entirely new concept.
I understand the origin of the new clause. In essence, it is about the provision for annual renewal of control orders under the Prevention of Terrorism Act 2005, which the Terrorism Prevention and Investigation Measures Act repealed and replaced. The 2005 Act was passed under a greatly accelerated parliamentary timetable, with only limited opportunity for debate. By contrast, the Green Paper provided a full consultation and it is fair to say that the Bill has been through parliamentary scrutiny in the other place and this House. It is also worth underlining that the Bill’s provisions relate to the procedures of the court, rather than the exercise of controls by the Executive. I note that in the preceding debate the right hon. Member for Tooting said that we are in a “very different context”.
The circumstances in which CMPs could be used are limited to national security-sensitive cases and for hearings in the High Court, Court of Appeal, Court of Session and Supreme Court. As I have said, the judge has the discretion to determine whether a CMP is appropriate.
This problem is not likely to go away. Claimants should have the continued ability to bring claims against the Government and matters should be scrutinised by the courts, as opposed to a return to the current system, where in some circumstances justice is simply not possible. We will continue to be faced with the unpalatable dilemma of either damaging national security or potentially paying out significant sums of money.
I should also make clear that, although the Opposition’s proposed new clause applies to clauses 6 to 12, it would also affect the reviews of certificates issued by the Secretary of State under the Norwich Pharmacal clauses. Such proceedings are deemed to be section 6 proceedings because the case needs to be heard in CMP in order to ensure that its outcome is not prejudiced by having already publicly disclosed the very information with which the proceedings are concerned. Therefore, the effect of the proposed new clauses would be also to disrupt the Norwich Pharmacal clauses, which are intended to bring clarity and reassurance to intelligence-sharing partners.
International partners have expressed concerns about the Government’s ability to defend themselves and protect national security in cases where claimants make allegations against the state and its defence rests on national security material. We risk undermining the confidence of partners who share such information with us if they feel that we do not have in place secure processes to protect their material while defending Government actions.
Dr Huppert
I thank the hon. Gentleman for constantly plugging my Twitter accounts, as he did earlier, and Liberal Democrat Voice, and I recommend that he looks at it more often. I know Jo Shaw very well and we speak quite regularly. I think she would share my position of trying to push the vote on amendment 1, rather than that of the hon. Gentleman, and I am sure that if one asked her she would say she does not agree with his position of being in favour of closed material proceedings in principle.
Mr Slaughter
I do not think that is for this debate, but good try. I should follow the example of my boss and try not to antagonise the hon. Gentleman if I want him to vote with the Opposition on this matter. That may be contrary to what he said last Thursday, but it is in line with his party’s policy, what he did in Committee, and what seems to be the current position in Liberal Democrat Voice. We have heard enough of that; let us consider the Joint Committee on Human Rights, which stated in a short but telling paragraph in its most recent report:
“We also reiterate the recommendation in our first Report that the Bill provide for annual renewal, in view of the significance of what is being provided for and its radical departure from fundamental common law traditions.”
I am not sure one needs to go much further than that, and that lies at the heart of new clause 4.
Anyone who has sat through this debate, or previous debates in the other place or Committee, cannot be under any illusion that this Bill is complex, controversial and important, above all, for the reasons given by the hon. Member for Chichester (Mr Tyrie): it attacks and deals with fundamental issues of fair and open justice. It is also, I am afraid to say, confused—perhaps deliberately so—and has had a very confused birth. The Minister said that, contrary to comparable legislation, this Bill has made slow, stately and clear progress, but I beg to differ.
I do not think that anyone would quarrel with my assertion that the Bill is complex. It is complex even for lawyers, 702 of whom wrote to the Daily Mail last week saying that they would not support this part of the Bill. Views have been expressed either way on it, and I respect the views of lawyers from the senior judiciary and the Supreme Court, as well as of human rights lawyers and special advocates. We are not short of legal opinion on this matter, and it is not of one mind. Overwhelmingly, however, it takes the view that this is territory into which we should proceed with great care and great caution.
I do not think that the Minister would deny that the legislation was controversial, either. He will find similar sentiments on it being expressed in normally Conservative-supporting newspapers such as The Mail on Sunday and normally Liberal Democrat-supporting newspapers such as The Guardian. Huge amounts of thoughtful concern are being expressed across the press about the provisions.
I have heard the Minister without Portfolio say many times that secret courts were undesirable and that we would not have them if we did not need them. Where we differ is on how we should use the provisions and how far they should go. Some say that they should not go any distance at all, while others say, as we do, that they should be as closely constrained as possible.
The Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup (James Brokenshire) does not agree with my view that this is a confused measure. I am not going to repeat the vaudeville act that I so enjoyed doing in Committee, in which I pointed out the four different positions that the Liberal Democrats had held on the Bill, some of them simultaneously, or the four occasions on which the Minister without Portfolio had announced that he had seen the light and decided that he was previously wrong to be so terribly authoritarian and that he now had a package of measures that would ensure full judicial discretion and that CMPs were de facto, if not expressly in the Bill, to be used as a last resort. I think we have all seen through those posturings, which were adopted primarily for political purposes.
We have only to look through the list of amendments to the Bill and at what will be in the Bill after tonight—until such time, I hope, that some of it is removed again in the other place—to see that this is all hugely controversial. Yes, we have the six markers that were put down in the House of Lords, and I accept that two of those—the least far-reaching—have been accepted by the Government. The move from “must” to “may” opens the door to judicial discretion; there is agreement on that. There has been some peculiar dithering about equality of arms, which is a strange term to use in this context as it refers simply to the ability of both parties to apply to get into a CMP; it will have nothing to do with equality of arms once the CMP has been invoked. That proposal was put in, taken out and put in again by the Government. I am not making a point about that; it is in there now and the Government are supporting our amendments on that tonight, but—
John McDonnell
I tabled new clause 9, which, as has been said, was debated in Committee. I congratulate Lawrence McNamara on his work—on the advice that he gave the House overall, and the evidence that he gave to the Joint Committee on Human Rights. He made a simple point. As we have seen tonight, this is an extremely contentious Bill concerning a contentious procedure, and it therefore warrants close monitoring. The best way of enabling that to happen is to establish a database at the earliest opportunity in order to ensure that the necessary information is recorded.
Lawrence McNamara made a fairly straightforward recommendation to the Committee. He suggested a template-form statement specifying the duration of open hearings and closed hearings, the number of witnesses heard in closed proceedings and the nature of those witnesses, the length of a closed judgment, and whether national security was an issue in the proceedings. The information whose collection is requested is not exactly highly controversial. The reason for requiring it is that it would inform the proposed review, and inform the wider media and the general public about the activities that were being undertaken as a result of the Bill. I am perplexed about why the Government did not simply accept that recommendation. Surely they would want to collect the information as well, in order to monitor their own legislation.
I welcome new clause 5. At least the Government are doing something about reporting. However, the report that they propose would be undertaken after 12 months of operation. I think that people need an ongoing database to which they can refer regularly, and which can be used when necessary to inform debates in the House and among the general public. The database would also feed into the review itself. It would enable a proper discussion to be held about whether the legislation was being implemented effectively, and about the scale of its implementation.
One of the arguments that we have heard tonight is that the CMPs will be used in only a small number of cases—15, according to the impact assessment, but that figure appeared to have been plucked out of the air when the Minister without Portfolio was interrogated further. Given the uncertainty about the import and breadth of the use of the legislation, there is obviously a need for an ongoing database to monitor the position, and that is all that the amendment does. For the life of me, I cannot understand why the Government are unwilling to accept it. I would expect a good Government to want to manage that information anyway.
With regard to the review, I wholeheartedly support the proposal for Joint Committee approval of the appointment. We had a similar discussion about the Bank of England, although without success, but the Treasury Committee was certainly successful with regard to the Office for Budget Responsibility. I suggest that this post is equally important and that, because the legislation is contentious, it is important that the person who reviews it has the full support of the House, and that could be secured by the Committee.
With regard to expiry and renewal, I remind Members that when the Prevention of Terrorism Act 2005 was introduced, we secured an annual debate on renewal. I cannot remember it being argued at the time that that was because the legislation did not have sufficient scrutiny in its early days. I know that it was introduced as emergency legislation, but subsequently there was fairly intense debate about whether it needed to be amended at different stages. The annual renewal was intended to give us an opportunity to see whether it was working effectively and to estimate the consequences for human rights, a critical debate that a number of us have engaged in year in, year out. It did not mean that there were any major amendments as such; it meant that Members of this House, and through them the general public, could satisfy themselves as to whether the legislation was operating in accordance with the original intentions. That is what an expiry and renewal clause would enable us to do. Again, I cannot for the life of me see that as contentious; it is simply another democratic fall-back or long-stop mechanism to ensure that we are fully consulted and that we are satisfied that the legislation has been implemented effectively.
On that basis, I will support the amendments tabled by Opposition Front Benchers and will not press new clause 9 to a Division, but I must express my disappointment that the Government have not gone very far in accommodating what I think would simply be an exercise in openness and transparency for a particularly contentious piece of legislation.
Dr Huppert
I wish first to put on the record my thanks to the Minister. In Committee he resisted many of my amendments, which was frustrating, but he did agree to take away my new clauses 1 and 2, which related to reporting and reviewing, and reflect on them. He has been true to his word, and new clauses 5 and 6 are the result. There are a couple of slight differences in the time scales, but, as I indicated in Committee, my aim was to try to achieve regular reporting and review, rather than being fixated on the exact number of months, and clearly reports that happen so quickly that there is not enough time to get information are not necessarily better. I am happy to settle for the annual report and pleased to see it.
I am also happy to see the five-yearly review, but I have a slight issue with it and would be grateful for clarification from the Minister. During a brief exchange earlier in the debate, he talked about the five-yearly approach being appropriate, and I think he said “once a Parliament”. As I read it, the wording of the clause indicates that the review would be done after five years and never again, so there is a difference between the two proposals. I hope that he will reflect on which it is intended to be.
The review might find that everything is working fine, and even those of us who are deeply uncomfortable with the whole concept might find that it does not work in the way we had anticipated, in which case we might not need regular reviews, but there might be things we need to consider, in which case we would like to see five-yearly reviews. I think it is important that each Parliament can reflect and conclude, for example, that this has gradually grown, that there are more and more cases, or fewer and fewer cases, or that something else has changed. I hope that the Minister will look at that. I am pleased that there will be the five-yearly review.
I would certainly support the idea of the independent reviewer being appointed more independently, as I think would my Liberal Democrat colleagues. I do not know whether the Government will be able to find a way to deliver that, but I hope that they will, because I do not think that that would cause any significant harm. I have some slight reservations about the five-yearly period.
New clause 4 is similar to the annual renewal proposal that I and my hon. Friend the Member for Edinburgh West (Mike Crockart) made in Committee and to the one proposed by the hon. Member for Hammersmith (Mr Slaughter), who was apparently performing vaudeville at some stage in Committee—I am afraid I must have missed it. I am still keen to see some form of regular renewal. The Government are resistant to annual renewal. I will certainly be supporting such a renewal, but if it continues to be a stumbling block, will they consider five-yearly renewal? I had a similar discussion about that on the same terms with the Minister in respect of the Terrorism Prevention and Investigation Measures Bill. In that case, he and the Home Secretary decided on a five-yearly renewal and perhaps he will make the same incredibly wise decision in this case, as it was clearly a good one.